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Advocate Leena Kaulgekar for the Complainant
Advocate Vijay Raut for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 25th April, 2014
This complaint is filed by flat owner against the builder and promoter for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant Nos. 1 and 2 are husband and wife. They are residing at Aroma Residency, village Kharadi, Pune 411 014. Opponent is builder and promoter by profession. Complainants have jointly purchased flat No.203 in Aroma Residency, which is developed by the Opponent at village Kharadi, Pune. They have entered into an agreement with the Opponent on 30/10/2010. It was agreed between the parties that, Opponent shall handover the parking for four wheeler admeasuring 12.50 sq mtrs. Cost of the said area is Rs.92,813/-. Parking which is allotted to the complainant is admeasuring 200(W) x 340 (L) cm. instead of 12.50 sq.mtrs. Besides the less area of parking there are other defects in the quality of construction. The bathroom door quality is very poor, toilet and bathroom locks are rusted, main door frame is bended, there is gap between bathroom door and frame, there is gap between bedroom door and frame, there is gap between kitchen window and wall, terrace door and frame quality is also bad, outside wall painting is incomplete, there is gap between terrace door frame and wall, frame of the terrace door is also poor, there are cracks in terrace wall, quality of toilet door is also poor, there is toilet leakage of upper flat No. 393 which is not done and same is smelling badly since last two years, the flooring of terrace and internal flooring is uneven, wall plaster is also not done properly, kitchen window loft was not constructed initially and later on iron loft was fitted manually. Hence, complainants have filed present complaint for non allotment of parking space as per the agreement, deficiency in service and defects in the construction, for mental and physical harassment and cost of the litigation.
[2] Opponent resisted the claim by filing written version. As regards the transaction of sale and purchase of flat there is no dispute between the parties. It is not disputed by the Opponent that, complainants have paid entire consideration. But it is the case of the Opponent that, it has never agreed to sale out the parking admeasuring 12.50 sq.mtrs as alleged. As regards defects in construction, deficiency in service etc., it is the case of the Opponent that, the complainants have not made any grievance about the quality of construction at the time of taking of possession. It is further contended that the complainants have agreed in the agreement that, they will never make any grievance or raise objection as regards the parking area etc., now they are estopped from making such grievances. It is also contended that, the Corporation Authorities have visited the flat and issued completion certificate. Now complainants cannot make any grievance about the construction. Opponent has prayed for dismissal of the complaint.
[3] After considering the pleading of both parties, affidavits, scrutinizing the documents, written arguments and hearing the argument of both sides, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainants have established that there is deficiency in service on the part of Opponent ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos. 1 and 2-
[4] The undisputed facts between the parties are that, the complainants have purchased the flat in question from the Opponent and possession of the flat was already delivered by the Opponent. The present complaint is filed by complainants mainly on two grounds. Firstly, the area of parking space is insufficient and secondly there are defects in the construction. It is the case of the Opponent that, it has never agreed to sale out 12.50 sq.mtrs. parking area to the complainants. In order to establish this fact, complainants have mostly relied upon the registered agreement between the parties. It reveals from the same that, in schedule C, the Opponent has agreed to allot four wheeler covered parking space admeasuring 12.50 sq.mtrs. Now the Opponent cannot say that, it has never agreed to sale the parking area to the complainants. This grievance was made by the complainants even prior to filing of the complaint in the correspondence between the complainant and the Opponent. As regards other deficiencies i.e. quality of construction, complainants have produced photographs showing the gaps in the wall and floor as well as doors of toilet, bathroom, kitchen window etc. The photographs of parking which is allotted to the complainants are also filed on record by the complainants. Photographs are clearly showing the defective quality of construction. It is alleged by the Opponent that, as the complainants have agreed that, they will not raise any objection as regards defects, now they are estopped from saying anything about the defects. It is also argued that, at the time of possession, complainants have not made any grievance about the said defects. It is significant to note that, the defects in the construction cannot be realized immediately at the time of taking of possession. These defects can be noticed when the parties are using the said premises. Moreover, the clause in the agreement which restrict the consumer from taking any action is redundant as it is against the public policy and on that ground it cannot be said that, the complainants are estopped from taking any action against the builder. After considering the evidence on record, this Forum is of the opinion that the complainants have established that the area of parking is less, there are defects in the construction and these factors amounts to deficiency in service. Hence, complainants are entitled for compensation on the ground of deficiencies as well as for mental and physical sufferings and cost of the litigation. Amount of Rs.1,50,000/- in lumpsum as compensation on all the counts would meet the ends of justice.
This Forum answers the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent has caused deficiency in service by providing less parking area and defects in the construction.
3. Opponent is directed to pay amount of Rs.1,50,000/- [Rupees One Lakh Fifty Thousand only] to the complainant in lumpsum towards compensation on all the counts within six weeks from the date of receipt of copy of this order.
4. It the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. Both parties are directed to collect the copies of set which are provided for the Hon’ble Member within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 25/04/2014
